NAGENDRA NATH ROY Vs. HARIRAM SINGHANIA AND ANR.

JUDGEMENT

(1.) THIS revision is directed against the order passed by the learned Subordinate Judge, Sambalpur rejecting the Plaintiffs petition under Section 35 -B of the Code of Civil Procedure (for short the 'Code').

(2.) THE Petitioner (Plaintiff) instituted Title Suit No. 38 of 1976 in the trial court for declaration of title and recovery of possession in respect of the suit land. The suit became ready for healing on 4 -11 -1980 and was adjourned from time to time to different dates. On 17 -12 -1980, on the opposite parties (Defendants) petition for adjournment, the trial court levied cost of Rs. 10/ - against them. On 18 -12 -1980 cost was not paid, but P.W. 1 was examined by the Petitioner and cross -examined by the opposite parties. On 27 -1 -1981, the opposite parties applied for adjournment and a cost of Rs. 15/ - was imposed to be payable to the Petitioner. On 29 -4 -1981 and 30 -4 -1981 regular hearing of the suit commenced and the Petitioner was examined as P.W. 2 and cross -examined by the opposite parties. On 18 -9 -1981, when hearing of the suit was resumed, the opp. parties applied for adjournment. The suit was adjourned and cost of Rs. 75/ - was levied by 18 -11 -1981 the opposite parties had not paid the costs to the Petitioner. On that day the Petitioner made a petition under Section 35 -B of the Code, stating therein that the opposite parties failed to pay the costs as directed by the trial court to him. The provisions of Section 35 -B of the Code being mandatory the opposite parties should be debarred from further participation in the trial of the suit. This petition was rejected by the impugned order, mainly on the ground that the Advocate for the opposite parties offered the costs to the Advocate for the Petitioner, who refused to accept the same and so the opposite parties were directed to deposit the costs in the Nizarat. Further despite non -payment of costs the opposite parties participated in the trial without any objection being raised by the Petitioner and so there was waiver of his right, if any, with regard to participation of the opposite parties in the trial of the suit. This order of the trial court has been challenged in this Court.

(3.) SECTION 35 -B was inserted by the Code of Civil Procedure (Amendment) Act, 1976 to give to the court a discretion to impose compensatory cost on parties who are responsible for delay at any stage of the litigation. Imposition of such cost is irrespective of the ultimate outcome of the litigation. The legislative intention in introducing the new provision is to avoid delay in disposal of suits, payment of compensatory cost for causing delay being condition precedent to the further prosecution of the suit or the defence, by the Plaintiff or the Defendant concerned. A plain reading of the section makes the mandate amply clear that if the Plaintiff is required to pay cost he must have to pay the same to the Defendant before prosecuting his suit any further. If the Defendant has to pay cost to the Plaintiff, he must have to pay the same before prosecuting his defence. Payment of cost either by the Plaintiff or by the Defendant as directed by the court becomes condition precedent for further prosecution of the Plaintiff's case or the defence case. If, therefore, the cost is paid, the embargo put by Section 35 -B is removed and the party who was required to pay the cost can prosecute his case.